Martinez v McKenzie

[*1] Martinez v McKenzie 2005 NY Slip Op 51952(U) [10 Misc 3d 1054(A)] Decided on October 7, 2005 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2005
Supreme Court, Bronx County

Luis Martinez and Craig Colon, Plaintiffs,

against

Karen McKenzie and Ralston McKenzie, Defendants.



24180/2002

George D. Salerno, J.

Motion by Defendants, KAREN McKENZIE and RALSTON McKENZIE, (McKENZIE) for summary judgment to dismiss plaintiff's complaint premised on Plaintiffs, LUIS MARTINEZ and CRAIG COLON's, failure to sustain a "serious injury" as defined by Insurance Law §5102(d) is granted.

This is an action to recover damages for personal injuries allegedly sustained in a motor vehicle accident on December 18, 2001, when Plaintiff MARTINEZ was then 45 years old, and Plaintiff COLON 26 years old.

Insurance Law §5102(d), categorizes "serious injury"as:

"a personal injury which results in...permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute a person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

Determining whether a plaintiff sustained a serious injury requires adherence to the admonition pronounced by Judges Graffeo in Toure v. Avis Rent A Car Systems Inc., 98 NY2d 345, "the legislative intent underlying No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries". However, applying the legislative intent to recoveries to what is sometimes generically described as a serious injury, has not in the face of the myriad medical treatments administered to plaintiffs who claim to have sustained a serious injury, occurred with consistent clarity. As Justice Marlow eloquently commented in Brown v. Achy 9 AD3d 30, the Court is once again presented with the frustrating "task of deciding when evidence presented on a motion for summary meets the serious injury threshold (Insurance Law §5102(d) an elusive standard that all too frequently escapes facile and final resolution".

Plaintiff LUIS MARTINEZ: [*2]

Defendants in support of their motion present: the affirmation of Dr. Robert Tantleff, a radiologist, dated December 2, 2004, affirmation of Dr. Edward Crane, a orthopedic physician, the pleadings, plaintiff's Verified Bill of Particulars, the deposition transcript of MARTINEZ, affirmed report of Dr. Edward Crane, dated September 30, 2004 concerning his orthopedic evaluation of MARTINEZ, the affirmed report of Dr. Crane relating to his orthopedic evaluation and review of the MRI of plaintiff's cervical and lumbar spine, affirmed report of Dr. Tantleff, dated November 15, 2004 regarding his review of the MRI films of MARTINEZ's cervical spine and Dr. Tantleff's affirmed report relating to his review of the lumbar spine.

Dr. Tantleff's affirmed report, dated November 15, 2004, details his review of the MRI film of MARTINEZ's cervical spine (January 17, 2002) and his affirmed report also dated November 15, 2004 sets forth his findings regarding his review of the MRI films of plaintiff's lumbar spine. (Defendants Exhibit H).

The records reviewed by Dr. Tantleff's as described in his reports are incorporated by reference in his affirmation, dated December 2, 1994, and his findings are outlined in considerable detail in his report in which he states in pertinent part: "The examination reveals degeneration and desiccationof all the visualized cervical intervertebral discs from C2/3

through C6/7.... Desiccation (Loss of Tz signal) and/or loss of disc height are reliable signs of disc degeneration with resultant loss of normal disc fluid...."

Dr. Tantleff's findings as incorporated in his report regarding plaintiff lumbar spine are: "degeneration and desiccation of the L5/S1 intervertebral discs and to a lesser extent L3/4. The remaining visualized intervertebral discs are normal well hydrated discs. Desiccation (loss of Tz signal) and/or loss of disc height are reliable signs of disc degeneration with resultant loss of normal disc fluid."

Dr. Tantleff's radiological finding are also repeated in a concise opinion dated December 2, 2004 regarding plaintiff MARTINEZ's alleged cervical and lumbar injury which states:

"The alleged findings involving Luis Martinez's cervical

spine are findings, which have developed over the course

of many years and are a longstanding chronic process. They

are not causally related to the accident of December 18, 2001

that occurred approximately one month prior to the cervical

[Lumbar] spine MRI examination. Rather, the findings are consistent with wear and tear of the normal aging process." (Defendants Exhibit H.)

Defendant's orthopedic expert, Dr. Crane, physically examined MARTINEZ on September 30, 2004 and determined that MARTINEZ's prognosis is excellent, requires no further medical treatment, and is able to work as a custodian without restrictions. (Defendants' Exhibit "G"). In particular, Dr. Crane provided the following details: [*3] "Range of motion of his neck was complete and pain-free: extension 30O, flexion 60O, right lateral rotation 60O, left lateral rotation 60O. He had no posterior paravertebral cervical muscle tenderness or spasm. ... Biceps, triceps and brachioradialis reflexes were 2+ and symmetrical bilaterally. He had normal strength in both arms with manual muscle testing. With pinprick stimulation he had normal sensation in both arms. ... He had painless lumbosacral flexion to 90O. Right and left lateral bend were also unimpeded and pain-free. He had no lumbosacral paravertebral tenderness or spasm. ... Manual muscle testing was performed. He had normal strength in both legs. On pinprick stimulation he had normal sensation in both legs. The straight leg raising test was negative to 90O bilaterally." [emphasis added]

(Dr. Crane's affirmed report, Defendants' Exhibit "G").

In addition to his orthopedic physical examination, Dr. Crane also premised his opinion after reviewing MARTINEZ's bills of "particulars, medical records and reports from Suma Medical Services, West Tremont Diagnostic, Dr. Matrangolo, Dr. Nangia, and physical therapy notes. ( Defendants' Exhibit "G"). Thus, Defendants' submissions are sufficient to meet their "initial burden to establish a prima facie case that MARTINEZ's alleged injuries did not meet the serious injury threshold under the No-Fault Law." (Toure v. Avis, 98 NY2d 345, 352 [2002] ).

"Consequently, the burden shifted to MARTINEZ to raise a triable issue of fact that he sustained a serious injury. "Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint." (See Thompson v. Abbasi, 15 AD3d 95, 97 [1st Dept. 2005]; Bent v. Jackson, 15 AD3d 46 [1st Dept. 2005] ).

In Opposition MARTINEZ submits the affirmation by Dr. R.C. Krishna, who performed one neurological consultation on January 12, 2005, (Plaintiffs' Exhibit "M"); and the Affirmation by Dr. Bruce Campbell, a Radiologist, who comments on the MRI of the "L" Spine, (presumably the lumbar spine) taken March 2, 2002. (Plaintiffs' Exhibit "J") which is meshed together with the unaffirmed report of Dr. Campbell and includes his findings regarding only MARTINEZ's cervical spine but also his lumbar spine (Plaintiff's Exhibit J). Also tendered are what appears to be billing records of Suma Medical Services. a electromyography Study regarding Carpal Tumel Syndrome and the presence of nerve root ivitation at C5-6.

Dr. Krishna's affirmation indicates that his review of MARTINEZ's medical records was confined to the MRI report which he states was dated "March 6, 2002" although Dr. Campbell indicates that the MRI was taken "March 2, 2002." Moreover, what is also particularly revealing is that Dr. Krishna's comments seemingly limits the radiologists findings to "the presence of an L4-S1 multilevel bulging disc." Such discrepancies without explanation impairs the value of his opinion.

Dr. Krishna, is not a treating physician and while he describes deficiencies of range of motion to MARTINEZ's Cervical Spine, and Thoracolumbar Spine, which, coincidently, are identical to Dr. Krishna's findings regarding Plaintiff, COLON, (Plaintiffs' Exhibit "M" and "N"), he fails to provide the objective tests, if any, he administered during his examination. (See Oribamie v. Santiago 12 AD3d 350).

[*4]The First Department has repeatedly held that a plaintiff does not meet the burden of proof required to establish serious injury where the physicians examination that recorded plaintiff's limitations were not measured within a reasonable time after the accident. In Thompson v. Abbasi, 15 AD3d 95 [1st Dept. 2005], despite positive MRI findings, the Court held there was a failure of proof where plaintiffs did not, also, present: "objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine ...or any detailed explanation for their omission. Consequently, there is a failure of proof relating to the subsequent range-of-motion restrictions in the cervical spine 2 ½ years after the accident. ... This Plaintiff waited over 2 ½ years to uncover evidence of the limitations to his neck which he now claims meets the threshold. The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiff's post-accident limitations were, if any. By 'post accident', we mean limitations suffered within a reasonable time after the accident under all of the relevant circumstances." [emphasis added] Thompson v. Abbasi, 15 AD3d 95, 98-99 (1st Dept. 2005).Likewise, in another recent case, the First Department affirmed the

dismissal of plaintiff's action where:

"plaintiffs' claimed cervical and lumbar spine limitations suffer from the lack of any contemporaneous qualitative evidence of such restrictions." Although each plaintiff was examined shortly after the accident and found to have limitations, Dr. Francois' initial reports fails to quantify any such limitations. Dr. Francois only purports to quantify plaintiff's limitations in a reevaluation some 21/2 years later, without any explanation for the time gap." [emphasis added] Petinrin v. Levering, 17 AD3d 173 [1st Dept. April 12, 2005].

Similarly, the First Department's holding in Grimes-Carrion v. Carroll, 17 AD3d 296 (1st Dept., April 28, 2005) that plaintiff's submissions did "not establish spinal limitations measured in January 2004 were caused by the October 2000 accident" where the chiropractor did not describe Plaintiff's initial spinal limitations. Although the chiropractor treated plaintiff "2-3 times per week, from October 31, 2000 to August 28, 2001, and periodically thereafter, [t]his expert did not quantify plaintiff's spinal range of motion limitations until January 15, 2004"; therefore, "Plaintiff's cumulative submissions were insufficient to meet the statutory threshold." (Grimes-Carrion v. Carroll, 17 AD3d 296, supra , [1st Dept. 2005]. See also Stevens v. Homiak Transport, Inc., 800 NYS2d 157 {21 AD3d 300} [1st Dept., August 18, 2005] ).

Moreover, plaintiff's alleged medical problems that he says ensued from the accident did not impair his work as a custodian. Admittedly he returned to work the day after the accident and his duties did not change. MARTINEZ 's job function entailed collecting garbage, sweeping, mopping floors, cleaning bathrooms, changing light bulbs; and climbing ladders. (MARTINEZ's EBT, p. 8-10, 57-58, 74-75). MARTINEZ also stated that he is able to perform household [*5]chores, and his daily activities, without limitations. MARTINEZ's EBT, p. 71-75). Such testimony contradicts his Affidavit. "Self-serving affidavits submitted by plaintiff which clearly contradict plaintiff's deposition and testimony can only be considered to be tailored to avoid the consequences of [his] earlier testimony and insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment." Perez v. Bronx Park South. Associates, 285 AD2d 402, 404 [1st Dept. 2001].

The Court of Appeals has also stated that: "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, and intervening medical problem or a pre-existing condition summary dismissal of the complaint may be appropriate." [emphasis added] Pommells v. Perez, 4 NY3d 566, 572 (2005). In the case at bar, MARTINEZ acknowledged that he "had a prior accident approximately 15 years ago when [he] injured [his] lower back." (MARTINEZ's Affidavit Exhibit "F"). It is also significant that MARTINEZ's expert not only failed to refute evidence regarding his prior accident, but commented that his "past medical history" was "unremarkable". (Krishna's Affirmation Exhibit "M").

Following the Court of Appeals decision in Pommells, supra , the First Department held that, where a plaintiff's treating doctor did not mention the pre-existing condition, the doctors "conclusion that plaintiff's condition is causally related to the opinion regarding causation is mere speculation insufficient to defeat defendants' well-supported summary judgment motion."(See Montgomery v. Pena, 19 AD3d 288, 290 [1st Dept., June 28, 2005] ).

Plaintiff's lack of treatment which lasted only five months militates against plaintiff's contention that he sustained a serious injury. As the Court noted in Pommels v. Perez, supra ,4 NY3d 566, 574 the gap in treatment issue is a prominent factor in determining whether a plaintiff sustained a serious injury. A plaintiff who terminates therapeutic measures following the accident.....must offer some reasonable explanation for having sone so" Pommells v. Perez at page 574).

In the case at bar, Dr. Krishna, fails to address this issue. Although Plaintiff MARTINEZ attempts to offer his own explanation, the First Department has held that a plaintiff's "self-serving explanation that he stopped going to physical therapy because it provided only temporary relief is 'entitled to little weight, and [is] certainly insufficient to raise a triable issue of fact.' " (see Thompson v. Abbasi, supra , 15 AD3d 95, 99 [1st Dept. 2005].

Plaintiff CRAIG COLON:

In support of Defendants' motion to dismiss COLON's complaint. Defendants submit the Affirmation and affirmed reports of Dr. Edward Crane, an orthopaedist, ( Defendants' Exhibit "I").

Dr. Crane performed a physical examination of COLON on September 30, 2004; and found no objective evidence of any orthopedic residuals related to the subject accident. Dr. Crane's opinion was COLON's prognosis is excellent; he will not require further medical treatment; and has no disability as a result of the accident. (Crane's Affirmed report, Defendants' Exhibit "I"). In particular, Dr. Crane, states: "Cervical range of motion was complete and pain-free: extension 30O,

flexion 45O, right lateral rotation 70O, left lateral rotation 70O. There was

no posterior paravertebral cervical muscle tenderness or spasm... On [*6]

manual muscle testing, he had normal strength in both arms. On pinprick

stimulation, he had normal sensation in both arms... On manual muscle

testing, he had normal strength in both legs. On pinprick stimulation,

he had normal strength in both legs. Straight leg raising was negative

to 90O bilaterally." (Defendants' Exhibit "I").

In addition to his orthopedic physical examination, Dr. Crane reviewed Plaintiff's Bill of "Particulars, the medical records and reports from Suma Medical Services, West Tremont Medical Diagnostics, Dr. Nangia, Dr. Matrangolo, physical therapy progress notes" and copies of the MRI of the cervical spine dated 2/2/02, and the MRI of the lumbar spine dated February 23, 2002.

Thus defendants' submissions are sufficient to meet their "initial burden to establish a prima facie case that Plaintiff's alleged injuries did not meet the serious injury threshold under the No-Fault Law." (Toure v. Avis, 98 NY2d 345, 352 [2002].

"Consequently, the burden shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law, and the failure to raise a triable issue of fact requires the Court to grant summary judgment. "(See Thompson v. Abbasi, supra , 15 AD3d 95, 97 [1st Dept. 2005]; Bent v. Jackson, supra , 15 AD3d 46 [1st Dept. 2005] ).

In Opposition to Defendants' Motion, Plaintiff COLON presents the affirmation of; Dr. R.C. Krishna, who performed one neurological examination of plaintiff on January 20, 2005, (Plaintiffs' Exhibit "N"); Affirmation by Dr. Bruce Campbell, whose comments relate to the MRI of the plaintiff's cervical spine dated February 2, 2002 taken at West Tremont Medical diagnostics; and the MRI of the Lumbar Spine, taken February 23, 2002. (Plaintiffs' Exhibit "L").

The only records reviewed by Dr. Krishna were the MRI Report of the Lumbar Spine dated February 28, 2002; and the MRI Report of the plaintiff's cervical spine, dated February 2, 2002 (Plaintiffs' Exhibit "N"). Plaintiff COLON'S MRIs purportedly show some disc bulges but no herniations.

Dr. Krishna, who is not a treating physician, describes the deficiencies in plaintiff's range of motion in his Cervical Spine, and Thoracolumbar Spine, which, coincidently, are identical to his findings of Plaintiff, MARTINEZ. (Dr. Krishna's Affirmations, Plaintiffs' Exhibit "M" and "N"). Where a non treating physician submitted "virtually identical affidavits" regarding two plaintiffs, such proof is viewed unfavorably by the First Department. ( See Flores v. Singh, 13 AD3d 203 [1st Dept. 2004] ).

Moreover, the First Department has recently, repeatedly, held that plaintiffs have not met their burden of proof where they do not, present proof showing plaintiff's limitations measured within a reasonable time after the accident. As discussed, in the case of Thompson v. Abbasi, supra , despite positive MRI findings, there was a failure of proof where plaintiff did not, also, present: "objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine ...or any detailed explanation for their omission. ...The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiff's post-accident limitations were, if any. By 'post accident', we mean limitations [*7]suffered within a reasonable time after the accident under all of the relevant circumstances." [emphasis added] Thompson v. Abbasi, 15 AD3d 95, 98-99 [1st Dept. 2005].

Also, the First Department affirmed the dismissal of the case where: "plaintiff's submissions with respect to their claimed cervical and lumbar spine limitations suffer from the lack of any contemporaneous qualitative evidence of such restrictions." [emphasis added] (Petinrin v. Levering. 17 AD3d 173 [1st Dept. April 12, 2005]. See Gro,es- Carrion v. Carroll 17 AD2d 296 [1st Dept., April 28, 2005] See also Stevens v. Homiak Transport, Inc., 800 NYS2d 157 {21 AD3d 300} [1st Dept., August 18, 2005] ). In this regard, it is noteworthy that Plaintiff COLON admitted that he missed only one day from work. Plaintiff COLON's duties as a custodian and driver include cleaning, collecting garbage, mopping floors, sweeping, and cutting grass, (COLON's EBT, p. 13, 15-16, 18, 19-20, 30-31, 111-113). Further, despite his subjective complaints that he makes in his Affidavit, COLON "has not provided independent evidence to indicate that his inability to perform certain tasks was medically indicated." (see Grimes Carrion v. Carroll, 17 AD3d 296 [1st Dept. 2005]).

The Court of Appeals has recently stated that: "even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, and intervening medical problem or a pre-existing condition summary dismissal of the complaint may be appropriate." [emphasis added] (see Pommells v. Perez, 4 NY3d 566, 572(2005). [FN1]

Another aspect of this case that militates in favor of dismissal is COLON's cessation of treatment. "The 'gap' both renders the medical expert's later opinion on causation speculative, and places into question the seriousness of the injuries themselves." (Pommells v. Perez, supra , 4 NY3d 566, 574 [2005]).

In this case, Plaintiff admits that he received physical therapy, and chiropractic and acupuncture treatment, for about 9 months after the date of the accident, (COLON Affidavit, Plaintiffs' Exhibit "G")."A plaintiff who terminates therapeutic measures following the accident ...must offer some reasonable explanation for having done so." (Pommells v. Perez, supra , 4 NY3d 566, 574 [2005]). Dr.Krishna, fails to fully address this issue. Although COLON offers his own explanation, the First Department has held that a plaintiff's own "self-serving explanation that he stopped going to physical therapy because it provided only temporary relief is 'entitled to little weight, and [is] certainly insufficient to raise a triable issue of fact.' " (Thompson v. Abbasi, supra , 15 AD3d 95, 99 [1st Dept. 2005].

"The result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation. ...The Court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within [*8]the class of injuries that, under no-fault, should be excluded from judicial remedy. If it can be said, as a matter of law, that Plaintiff suffered no serious injury within the meaning...of the Insurance Law, then Plaintiff has no claim to assert and there is nothing for the jury to decide." Licari v. Elliott, 57 NY2d 230, 237-38 (1982).

Under all of the circumstances presented plaintiffs MARTINEZ and

COLON'S actions are dismissed.

This constitutes the decision and order of this Court.

Dated: October 7, 2005

J.S.C.

Footnotes

Footnote 1: It is noted that, in the Pommells trilogy, Plaintiffs were alleged to have herniated discs. However, herein, it is alleged that Plaintiff COLON, merely, has disc bulges. (See Dr. Krishna's Affirmation, at Plaintiffs' Exhibit "N"; and Dr. Campbell's Affirmation, at Plaintiffs' Exhibit "L")